I earlier blogged about the idea of enforcing the Proclamation’s statement that children are entitled to be raised in a two-parent household. That post generated a number of interesting comments. Also in that post, I promised a follow up about some specific ideas for putting the Proclamation’s entitlement into action. I’m sure you’ve all been on the edge of your collective seat, wondering about these specifics. Turn with me, then, back through the pages of history — to 2001, when Kaimi was a mere law clerk.
One of my proudest moments as a law clerk came when I worked on Beharry v. Reno. That case involved a legal immigrant who stole $700 from a coffee shop. For this robbery, he was given a prison sentence of about two years in a State prison. Following his prison sentence, he was hauled into Federal immigration court to be deported. Under a provision of the immigration laws, a legal permanent resident who is given a prison sentence of over a year is more-or-less automatically deportable. This sort of automatic deportation is routine and happens thousands of times every year.
The defendant’s case came to Federal court through a habeas corpus petition. Early on, his case was taken up by very able amici from the Center for Constitutional Rights. The CCR brief relied on statutes, case law, and international law. It noted, among other things, that the petitioner had a six-year-old, U.S. Citizen daughter.
In an opinion which I consider one of the most creative and courageous immigration opinions of recent years, my employer, the District Judge, held that the INS could not deport that petitioner without first holding a hearing to consider the effect such a deportation would have on his family, and specifically on his minor daughter.
The decision was based on a novel reading of international law, applying portions of the Convention on the Rights of the Child as applicable customary international law. It created quite a stir in immigration law circles, and was even discussed in some newspapers. Several months later, the decision was overturned on a technicality by an appeals court (the appellate court found that the petitioner’s habeas petition was improperly filed under the complicated “exhaustion” requirements of habeas law).
I continue to think that Beharry v. Reno was correctly decided at the District level. I think this for a number of reasons: I think that it was a good analysis of international law; I think that its logic makes sense. And I think that the decision was exactly right to say that routine deportation of parents, without any regard to their family situation, is a bad idea. As such, though the opinion has no explicit or even implicit Mormon references, I think that it is a strongly Mormon opinion — perhaps because I carried a Mormon worldview as I worked on it. I felt — and still feel — deeply offended at the government’s nonchalant willingness to tear apart families of legal immigrants.
Such deportations occur routinely. And that sort of across-the-board disregard for family integrity is something that should make Mormons rise up in protest. The application of such law flies in the face of the entitlement — yes, the entitlement — of Mr. Beharry’s child to be reared by a father and a mother in the home. It is a legal monstrosity that is contrary to God’s law, as stated by living prophets. And we should not rest until such evil laws are off of the books.
“Several months later, the decision was overturned on a technicality by an appeals court (the appellate court found that the petitioner’s habeas petition was improperly filed under the complicated “exhaustion” requirements of habeas law).”
One might point out, that virtually ALL successful habeas appeals are overturned on such technicalities. Indeed, I can think of few more insanely complicated regimes than federal habeas procedure, which seems to be designed to guarantee failure by procedural inadvertance.
I read Beharry, and thought it was a remarkably clever and creative piece of work. I also liked the outcome. The absolute worse cases that I worked on as a clerk (the ones that made you feel dirty for being a cog in a nasty and unjust system) were the immigration appeals. On the other hand, I recall thinking that some of the legal reasoning in the case was a bit forced. Once customary international law becomes the lynchpin of the argument, I start getting the suspicion that I am having my pocket picked.
I’ve always been opposed to giving any U.S. legal weight whatsoever to treaties that (like the Convention on the Rights of the Child) have not been ratified by the Senate.
Eric,
The CRC wasn’t applied as a treaty, but as evidence of customary international law (CIL). And there is 200 years of history, going back to Chief Justice John Marshall, holding that CIL is law in the United States. So that leg of the argument (the enforceability of CIL) isn’t just something that Justice Kennedy dreamed up one day.
The potential weak point in Beharry is the initial finding that the CRC is CIL. However, if the CRC is found to be CIL, it’s very hard to argue that it would not carry legal force. (There’s a recent article by Bradley and Goldsmith arguing that CIL shouldn’t apply as U.S. law, but they’ve got a ton of history going against them).
> held that the INS could not deport that petitioner without first holding a hearing to consider the effect such
> a deportation would have on his family, and specifically on his minor daughter.
The real problem in this case is that the petitioner should not have stolen $700 from a coffee shop without first holding a hearing to consider the effect such a robbery would have on his family, and specifically on his minor daughter.
Ah, so if other nations ratify a treaty, and turn it into customary international law, they can impose it on the U.S., bypassing the Senate.
Forgive me for thinking that is an absolutely ridiculous line of thought.
Eric,
What’s the ridiculous part? Have you read Beharry? If not, please take a look, and let me know which part of the reasoning you find ridiculous.
Kaimi: If I remember the case correctly, your CIL point is a little too stark. As I recall you were invoking a cannon of statutory construction stating that in the face of ambiguity, statutes ought to be interpreted to avoid conflicts with CIL. This is hardly a clear “CIL is US law period” kind of claim. As you well know, canons of construction like this don’t really have the status of rules of law (except perhaps in something like Ashwander analysis), and are notoriously indeterminate, ie Llewellyn’s argument about canon and counter canon. As it happens, I like the canons — inclusio unius est exclusio alterius and all the rest — but I wouldn’t get table thumping this-is-the-law-and-has-been-since-John-Marshall-put-on-his-hallowed-rob about it.
Eric: customary international law governs lots of things ranging from the treatment of diplomats to lots of issues in admiralty law. Many of these things are now governed in part by treaty and in part by CIL, but CIL remains an important part of domestic law.
Let us assume, that in the commission of his $700 robbery, the immigrant shoots and kills a coffee shop waiter. The judge, citing international precedent that goes back to the time of Moses (which, of course, is entirely irrelevant, since killing a person is against US law), says that it is against the law, and sends him to prison with a life sentence.
Are you arguing that the child’s right to have a father present in the home to bring him up, invalidates his conviction? And that the perp ought to walk?
David:
He served his prison sentence. He didn’t walk. What is at issue is whether or not his status as a prisoner should outweigh his status as the father of a U.S. citizen in how vigorous the government pursued the illegal immigrant case against him — the automatic deportation.
David,
Your hypothetical is odd, and seems completely unrelated to the legal reasoning in Beharry. Please take a look at the actual Beharry decision (which is linked above), and you’ll see that we did nothing like your hypothetical, and that your hypothetical outcome could not be reached under Beharry.
First, the ruling was narrow in scope, holding that a portion of INA section 212(h) had to be broadened to cover certain immigrants. 212(h) already provides for a hearing on family hardship for most aliens who have been present for over seven years in the United States. Mr. Beharry had that long of time in the U.S., but was outside of the 212(h) classification. The decision held that 212(h) should be read so as to comply with customary international law.
Second, even if the decision had stood up, Mr. Beharry would have then had to show, at a 212(h) hearing, that the balance of the equities favored relief from deportation. The 212(h) hearing would consider the nature of his crime, harm done, prior criminal record, and other factors against him. It would also consider employment history, family hardship, and other factors in his favor. It is impossible to say how a 212(h) hearing would have turned out in his case.
However, he would have gotten one. He would have gotten a hearing where the interests of his family would have been weighed — against other factors, like the seriousness of his crime, likelihood of recidivism, and so forth.
Third, 212(h) relief is unavailable for aliens convicted of certain serious crimes such as murder. The Beharry opinion did not affect those parts of 212(h) and that exclusion is explicitly mentioned in the opinion.
Fourth, Beharry related only to immigration consequences. Mr. Beharry served a criminal sentence, and the decision had no effect on the two year sentence he received for his theft. It has no effect on application of domestic criminal law, which you seem to be setting out in your hypothetical.
That’s the point. He served his time, and it was irrelevant that he had a child. Well, immigrants all over the world are aware that, if you break the law in the country to which you have immigrated, you are liable to be sent back to the country from which you came. An added penalty, perhaps, but a reasonable one.
So just like it was irrelevant that he had a US child for his prison sentence, it is irrelevant that he has a child for his deportation.
Mostly correct, William. One nitpick — it wasn’t an illegal immigrant case against him, it was the deportation provision that provides for automatic deportation of immigrant felons, whether they are legal residents or not. Mr. Beharry was a legal permanent resident alien.
David,
So the Proclamation doesn’t bother you at all on this? Is it just so many nice words, devoid of any meaning in the real world?
David writes:
“just like it was irrelevant that he had a US child for his prison sentence . . .”
That’s not entirely correct, as a matter of law. But now you’re anticipating the subject of my next post on this topic, so I’ll go no further on that topic for now.
Perhaps the use of “irrelevant” was a little over the top. The court may take many factors into considerations when applying sentencing, whether for a prison sentence or deportation. That is a long way from saying that it has established a “right”.
I guess that Eric is right–people ought to consider the consequences of their actions before they act, instead of afterwards, when facing removal from the United States. That accords with the well-established fiction in the criminal law that everybody has notice of the laws and it is therefore fair to hold us all accountable for not obeying them.
What may rub Eric the wrong way (but perhaps not–it doesn’t seem to bother the congress who passed the law, and the president who signed it) is that the immigration consequences of crimes have become substantially more severe in recent years, and those consequences apply to convictions that occurred before the laws changing those consequences were enacted. Thus a man who pled in 1984 to a charge of possession of marijuana, paid a $100 fine and “settled” his debt to the state of New York, can face removal from the US in 2005. One can imagine that the man’s lawyer might not have advised pleading to the marijuana charge in 1984 if he had known what the consequences would be 20 years later. But, as Carole King would say, “it’s too late baby.”
Beharry is interesting (in a way that only lawyers, and not Mr. Beharry, would appreciate) in that the crime was committed before the relevant statutes (IIRIRA and AEDPA) were enacted, but he entered his plea afterwards. So much for contemplating his crime’s consequences before he commited it!
Might this line of reasoning result in aliens with criminal proclivities fathering children as an insurance policy against deportation? That hardly seems in line with the Proclamation.
This example rather leads me to the concensus conclusion on your last Proclamation post: the “entitlement” language is the expression of an ideal. Treating it as a literal entitlement can lead to less than ideal results, like a six year-old being raised by a five-time loser like Beharry. She’s better off with him in Trinidad & Tobago (or either one), in my opinion.
Saying that a child has a “right” to be raised by a father and mother, etc. is an expression of a moral right, not necessarily a legal one, or one which should be necessarily enforced by the law, or which trumps every other right.
In the Articles of Faith it states that we “allow all men the same privilege, let them worship how, where, or what they may.” I doubt whether anyone considers that our saying this means we accord anyone the privilege, or the right, of coming to General Conference and taking over the microphone.
I was wondering the same thing as GST. A lot of people do not value their children and might perhaps father children simply to stay in the US and continue their illegal activities.
Takes the wisdom of Solomon.
I understand that concern, Anne and GST. No solution is perfect, but hopefully a solution like the one that Beharry tried to implement would avoid the problem you raise.
Beharry didn’t give any guarantees, but it did provide that petitioner with a hearing at which he could raise family hardship as a factor weighing against deportation. If he wasn’t really a part of his children’s lives, he wouldn’t be able to show any hardship. On the other hand, if he was a major part of their family structure and could show this, then that would be a factor that the court would weigh, along with any other positive factors (job history, education, veteran status), against any negative factors (seriousness of crime, prior record, etc).
I said:
> Ah, so if other nations ratify a treaty, and turn it into customary international law, they can impose it on the
> U.S., bypassing the Senate.
>
> Forgive me for thinking that is an absolutely ridiculous line of thought.
Kaimi replied:
> What’s the ridiculous part?
The U.S. Constitution requires that treaties be ratified by the U.S. Senate in order to become the law of the land.
Your position seems to be that if a sufficient number of other nations ratify a treaty that the U.S. has not ratified, the terms of that treaty could become customary international law. At that point, the treaty would become the law of the land in the U.S., despite the failure of the Senate to ratify it.
If treaties can make customary international law, is it possible for the U.S. to relieve itself from the obligations of a treaty by withdrawing? Under your interpretation, I don’t think so, since it doesn’t seem to matter whether the U.S. is a party or not.
The U.S. Supreme Court recently overturned application of the death penalty for crime committed by those under eighteen years of age. But assume for a moment that the Supreme Court had upheld the penalty.
Now, if the U.S. Senate ratified the Convention on the Rights of the Child, that would ban the death penalty for crimes committed by juveniles. And, under those circumstances, I would agree that it would be illegal for states to execute anyone for such crimes, because the treaty has been ratified by the Senate in accordance with the Constitution, thus becoming the law of the land.
However, under your theory, such executions would be illegal even if the Senate did not ratify the treaty, because the Convention on the Rights of the Child has become customary international law.
So according to you, the Constitutional provision on treaties should be read as if it said, “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present or a sufficient number of foreign governments concur….”
And that, I submit, is a ridiculous interpretation.
Now, the Beharry case did not go that far, recognizing at least that Congress could override customary international law by specifically passing something to overrule it. (And that overruling must be done after the international law has become customary. It cannot be preemptively overruled.) But it still seems backwards that Congress must specifically pass a law to overrule something which, if it were presented as a treaty rather than just a new provision of customary international law, would require a 2/3 majority in the Senate to pass in the first place.
Foreign courts are, of course, free to apply customary international law as overriding U.S. law. But I think U.S. courts should not overturn customary U.S. law on the basis of new customary international law. If Congress wants to apply the provisions of the Convention on the Rights of the Child, let them act to do so. They don’t even need to ratify the whole treaty — they could just pass laws on deportation in order to mandate that the best interest of the potential deportee’s children be a primary consideration.
Kaimi,
Does the right to be raised in a two-parent household include the right to be raised in the United States? I realize that as a practical matter the deportation may lead to a split in the family, but it doesn’t necessarily have to. Perhaps adherence to the proclamation would require accepting the consequences of violating the law but keeping the family together elsewhere. Might be harsh, but I see no necessary conflict with the proclamation.
Moreover, if you think it is okay for an immigration judge to balance the equities and conclude that splitting the family is justified, is there something inherently unjustified about congress making that decision prior to the fact?
Eric: Your argument here is way to blunt. The problem is that you are thinking strictly in terms of a binary: something has the force of law or it does not. However, there are lots of things that are persuasive authority. They are not controlling, but they are not irrelevent either. Consider, for example, the authority of the the debates of the constitutional convention or the Federalist papers in construing provisions of the constitution. These sources do not have the “force of law,” but they matter. BTW, there are lots of areas where you have judicially created (or acknowledged) default rules that legislatures are then free to overrule. Constitutionally, the dormant commerce clause is an example. At the more pedestrian level, the common law of tort or contract is an example. For example, state high courts regularlly cite the decisions of other state high courts as authority, even though those decisions are not strictly binding. With less frequency but nevertheless some regularity, American courts will cite English decisions on points of tort and contract law. (This was especially the case in the 19th century.) Indeed, virtually any class in American tort or contract law will require that you read lots of English opinions, and these opinions can be cited as persuasive authority in American courts. Indeed, there are legal doctrines in America that still go by the name of the English case that gave them birth, eg the Rule in Hadley Against Baxendale, the Rule in Shelly’s Case, etc. etc.
Todd,
Despite the failings of the immigration judges (I have yet to meet one that I thought was perfect, even when they’ve granted my clients’ applications), there is something considerably different between a congressional act and a judicial decision. Congress makes decisions about broad categories of persons, and cannot make individual judgments about individuals based upon factors that are specific to that person alone. That is why there is relief from removal for certain classes of aliens, but the granting of that relief is left to an immigration judge who can consider the facts specific to the person seeking it.
The broad categories that congress establishes necessarily create apparent inequities–particularly at the margins. For example, a theft crime where the sentence imposed is one year or more is an “aggravated felony,” from which there is available no relief from removal. Is it fair that one defendant is sentenced to a year and a day, and is thus ineligible for relief, where another defendant, guilty of the same crime, is sentenced to 364 days, and can apply for relief–and in the immigration court’s discretion, may receive it?
Even if Kaimi’s (or Judge Weinstein’s) creative decision were good law, it seems unlikely that fathering children to avoid removal from the US will become a substantial problem. The Immigration and Nationality Act already provides ways for parents to benefit from their children’s status: for example, a US citizen child can file a petition on behalf of his/her parents, and they can thereby become lawful permanent residents (the child has to be over 21, so it’s not going to help anytime soon, if the child is still in utero). Another example: an alien who entered the US without passport or visa can obtain permanent residence through a process called “cancellation of removal” if his removal would cause “exceptional and extremely unusual hardship” to his US citizen spouse or child. I haven’t seen any people rushing to the maternity ward to cash in on that one–particularly because it helps if your child has some rare disease that couldn’t be treated if you were deported to Lower Slobbovia.
Besides, as Kaimi says, the process of hearing before an immigration judge would give the government a chance to weed out those who are not “worthy” of a favorable exercise of discretion.
Nate,
I understand persuasive authority. But in the Beharry case, it is not merely persuasive.
Read part IV: Application of Law to Facts. The petitioner admits that the plain language of section 212(h) is not applicable to him. However, the court says, “As now interpreted and implemented against this petitioner, the statute would violate treaty
obligations and customary international law.” The court then decides “The most narrowly targeted way to bring the INA into compliance with international law requirements is to read into section 212(h) a requirement of compliance with international law.” So it is not that the international law is persuasive as to interpreting the language of the statute when there is doubt over its meaning — as is the case when state courts look to other state courts or back to old English common law cases. The court does not speak understanding the persuasive suggestions of international law; it speaks of complying with the requirements of international law.
And which international laws does it use as independent justifications for its decision? The International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. The ICCPR was, at least, ratified by the Senate — although the Senate conditioned its ratification, saying the treaty was not self-executing and that therefore it did not create a private right of action in U.S. courts. (I doubt the wisdom of ratifying treaties with conditions to which the other parties have not agreed, but it happens.) And if there is no right of action, no relief can be granted under the treaty. The treaty might be persuasive, but it cannot be a requirement. If, as some have argued, the lack of implementing legislation is a breach of our nation’s treaty obligations, that is an international political matter to be resolved between signatories to the treaty. Unless Congress has created a cause of action for a private person to sue to enforce a treaty’s provisions, any claim under the treaty should be dismissed.
And, as I’ve mentioned before, the Convention on the Rights of the Child has not been ratified. Which leaves it as customary international law which the court has decided overrules the plain language of a statute passed by Congress.
I wish I were younger and in better health so I could go to law school and join this fight on the front lines. Our current immigration policies make of all of us murderers and co-conspirators in crimes unthinkable. Every time they find a body in the desert, died of thirst, or a crate full of dehydrated and dying people, I am filled again with a feeling of pure anger that our country operates the way it does. Let us maintain a deliberately porous border for the sake of cheap groceries, hold out the lure of the “anchor baby” and welfare benefits…then look the other way when smugglers extort, rape, rob, neglect, and murder the desperate, hard-working human beings who risk their all to come to where the jobs are. Our President made a speech last year proposing changes to the system that would have been a good start on making it fair and safer. I cheered that speech because point by point, it made the same case I’ve been making. Conservatives rioted, calling it an amnesty, so he dropped it. We’re shouting into the wind. The status quo is too useful for certain powerful entities, so families will continue to be split up, good people deported, scofflaws free to hurt others.
Mark,
I understand that the primary difference between judicial decisionmaking and congressional decisionmaking is the judge’s ability to make more particularized judgments. That is certainly a good thing in many contexts, but it has its downsides as well. Judges who are given unqualified discretion to determine the outcome of a particular case often tend to ignore larger institutional concerns for the sake of “fairness” to the individual. In large quantities, such decisions can undermine the very purpose for which laws are enacted.
Moreover, while the broad congressionally enacted categories can certainly lead to inequities like those you mentioned, individualized decisions can also lead to concerns about unfairness. One defendant might receive a one year sentence, draw immigration Judge A and get to stay in the country, while another defendant with identical circumstances draws Judge B and gets deported. Neither result is fair in the abstract.
As I implied in my earlier post, Congress decided that there should be individualized decisions about removal in certain instances, presumably recognizing that leaving those decisions up to judges may well result in differing results for persons in similar situations. And, the discretion is essentially unfettered–so long as the crime is not an “aggravated felony” as defined by the statute, and certain minimum time of residency requirements are met, the operative language is that the “[judge] may cancel the removal . . .”
At least in cases that are decided by courts, and subject to review by higher courts, there is some promise that law will be understood and applied correctly to the facts. Unfortunately, an increasing number of decisions about admission into the US and granting of other benefits (such as drivers licenses) which turn on a person’s immigration status are made by persons not trained in the law, whose decisions are not subject to any meaningful right to judicial review. But that’s a topic for another day.
Todd,
I understand that particularized judgments can, depending on the situation, be even as unjust as broad rules.
Beharry wasn’t about the individual judgments as much as it was about a particular broad rule. The old rule said “don’t ever look at family situations for certain groups of aliens.” And Beharry proposed a contrasting broad rule which I thought was legally correct, and which is I think also much more in harmony with church teachings: “this group will always have a chance to try to demonstrate that family situations merit cancellation of removal.”
In the prior situation, all aliens situated as Beharry was will be removed. It doesn’t matter if their crime was 30 years back; if they are the sole supporter of a family of 15; if they are a bishop or branch president; if they are supporting a handicapped child who needs special care; if it’s a father or a mother. There is no hearing, no examination of individual facts, just automatic deportation.
Under Beharry, there would be an opportunity to show that the equities favored cancelling removal. There would certainly be many aliens who would still be removed. But some, as determined at the hearing, would be able to show that they deserved to have removal cancelled.
I actually started writing a paragraph to put in my previous post that would have recognized that the real issue is the particular broad rule, but then I got called away at work, couldn’t finish my thought and simply posted what is there. So, I see your point.
However, your post is, at least to some extent, about individual judgments over collective judgments because the rule you propose as “more in harmony with church teachings” requires an individual judgment for someone in Beharry’s situation. Would you take your argument further to say that the position most consistent with church teaching is that all groups should have the chance to demonstrate that their family circumstances merit cancellation of removal?
I don’t think that is tenable. Certainly some of these decisions can be made in the abstract – particularly with regard to certain types of crimes. So, what distinguishes Beharry is the particular type of crime for which you think family circumstances require an individualized judgment prior to cancellation of removal. And perhaps you are right that Beharry’s family situation should have been considered by a judge (and not by congress in the abstract) given his crime. But decisions over what crimes deserve automatic deportation and what crimes require individual hearings are decisions that legislators should be able to make (even though I would grant you that they didn’t make a nuanced one when adopting this particular law – any law that attaches severe legal consequences to committing a “felony” is not nearly nuanced enough given the breadth of crimes encompassed by the term). I tend to agree with Eric that the decision in Beharry was less about “interpreting” the statute as it was deciding that international law trumped the statute. On its face, the statute was pretty clear.
By the way, do you think the decision in Beharry would have been upheld on appeal? Seems unlikely to me. Who was on the panel?